Making clear that interpretation of the statutes as expressed in overridden precedents are not binding authority (271) gives lower courts the freedom to do the analysis suggested in step one of this proposal.
An alternative proposal would simply counsel lower courts to "signal" their discomfort with application of an overridden precedent but nonetheless abide by it up to and until the time when the Supreme Court officially announces the extent to which the override should be interpreted as overruling the Court's prior interpretation.
As discussed more fully above, the rebuttable presumption I propose is not a hard rule that the interpretation in an overridden precedent is clearly rejected.
By contrast, a presumption against relying on an overridden precedent refocuses the analysis on the statutory language and congressional signals, rather than on judicial interpretations.
In cases, such as Patterson, where the overridden case departed from a preexisting, relatively uniform statutory interpretation, or where an alternative interpretation is clear, the new rule would increase predictability.
This would of course take time, but it would replace the complicated task of trying to reconcile competing signals offered by the override and the overridden precedent.
The findings for the ADA Amendments state explicitly that the Supreme Court's prior interpretations "eliminat[ed] protection for many individuals whom Congress intended to protect" (288) and directs that the (revised) definition be construed "in favor of broad coverage." (289) Moreover, the purposes clauses explicitly "reject" aspects of the Supreme Court's "reasoning" and "standards" announced in the overridden precedents.
Additionally, in the employment discrimination context, there are a handful of articles that explore the specific question of whether an interpretation that has been overridden with respect to one statute should be applied to other statutes that are generally interpreted in tandem.
(11) See also Eskridge, supra note 2, at 333 n.4 (cataloguing overridden cases).
(55) See, e.g., Hausegger & Baum, supra note 46, at 238 (finding that Congress has overridden at least 5.6% of Supreme Court decisions in the 1978-1989 Terms).
The Supreme Court's resolution of the issue was overridden by Congress in the 1991 Civil Rights Act.
(163) Most commentators argue against applying the overridden precedents to other statutes.
